Informe provisional - Informe núm. 357, Junio 2010

1. 591. The Committee last examined this case at its March 2009 meeting [see 353rd Report, paras 968–1010]. By a communication dated 30 November 2009, the International Trade Union Confederation (ITUC) transmitted a communication dated 3 November 2009 from Education International (EI) containing new allegations.
2. 592. The Government sent its observations in communications dated 14 October 2009 and 7 March 2010.
3. 593. Ethiopia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 594. At its March 2009 meeting, the Committee considered it necessary to draw the special attention of the Governing Body to this case because of the extreme seriousness and urgency of the matters dealt with therein and made the following recommendations [see 353rd Report, paras 5 and 1010]:
   • (a) The Committee urges the Government to take all necessary measures to ensure that the National Teachers’ Association is registered without delay so that teachers may fully exercise their right to form organizations for the furtherance and defence of teachers’ occupational interests without further delay. It requests the Government to keep it informed of the progress made in this regard.
   • (b) The Committee once again urges the Government to take the necessary steps to ensure that the freedoms of association rights of civil servants, including teachers in the public sector, are fully guaranteed. It requests the Government to keep it informed of all progress made in this respect.
   • (c) The Committee expects that decisions in respect of the original complainant, ETA, members mentioned in the complaint will be handed down by the courts without further delay. It requests the Government to communicate the full texts of these judgements as soon as they have been rendered.
   • (d) The Committee urges the Government to ensure that Mr Mengistu is released or brought to trial without delay before an impartial and independent judicial authority.
   • (e) The Committee urges the Government to initiate without delay an independent inquiry into the allegations of torture and maltreatment of the detained persons to be led by a person that has the confidence of all the parties concerned, and if it is found that they have been subjected to maltreatment, to punish those responsible and to ensure appropriate compensation for any damages suffered. The Committee requests the Government to keep it informed of the steps taken in this regard and the results of the inquiry.
   • (f) The Committee expects that all trade unionists appearing before the court enjoy the due process guarantees necessary for their defence.
   • (g) The Committee urges the Government to initiate a full and independent investigation into the allegations of harassments in September–November 2007 of Ms Berhanework Zewdie, Ms Aregash Abu, Ms Elfinesh Demissie and Mr Wasihun Melese, all members of the National Executive Board of the complainant organization; as well as over 50 of its prominent activists in order to determine responsibilities, punish the guilty parties and prevent the repetition of similar acts. It requests the Government to keep it informed in this respect.
   • (h) The Committee requests the Government to take the necessary measures without delay in order to ensure the payment of lost wages to Ms Demissie, as well as adequate indemnities or penalty constituting a sufficiently dissuasive sanction against any further act of anti-union discrimination. It requests the Government to keep it informed in this respect.
   • (i) The Committee requests the complainants to indicate how the decision of the Government with regard to the conduct of the census in the Somali region affected trade union rights of the teachers concerned.
   • (j) The Committee requests the Government to reply in substance to the allegations of dismissal of two trade union leaders, Nikodimos Aramdie and Wondewosen Beyene, and, as regards the dismissal in 1995 of Kinfe Abate, requests the complainant to provide relevant and detailed information in respect of this dismissal and to indicate why it was not possible to provide this information previously.
   • (k) The Committee requests the Government to conduct an independent investigation into the allegations of harassment of seven trade unionists and to provide a detailed reply as to its outcome.

B. The complainants’ new allegations

1. 595. In their communication dated 30 November 2009, EI recalls that on 15 December 2008, the National Teachers’ Association (NTA) was denied registration by the Ministry of Justice, making its activists vulnerable to government pressure, including imprisonment and harassment. EI indicates that on 25 and 29 December 2008, two founding members of the NTA lodged petitions with the Minister of Justice and the Ombudsperson deploring that the decision of the Registration Office restricts the constitutional rights of an independent teacher association to exist in addition to the existing Ethiopian Teachers’ Association (ETA) 1993. Copies of the letter addressed to the Ombudsperson were sent to all relevant institutions in Ethiopia including the House of People’s Representatives, the Office of the Prime Minister and the Human Rights Commission.
2. 596. On 7 January 2009, the Vice-Commissioner of the Ombudsperson gave audience to representatives of the NTA founding members. The Vice-Commissioner demonstrated interest in the case and indicated that teachers’ constitutional freedom of association right had been violated when they were asked to produce a letter of support from their employer. The Vice-Commissioner pledged to discuss this issue with the colleagues in the Office of the Ombudsperson. Despite several reminders, the Ombudsperson is silent.
3. 597. Following attempts for three months to get an audience with the Minister of Justice and after consultation with the relevant teachers, representatives of the NTA decided to file a charge against the Ministry of Justice. On 30 March 2009, they brought the case to the Ninth Civil Bench of the Federal First Instance Court in Addis Ababa. The court gave instruction to the Ministry of Justice to produce its written response to the complaint. On 22 April 2009, the court indicated that the Ministry of Education was not entitled to allow or deny the right to organize to its employees. The court also stated that the names ETA and the NTA were different.
4. 598. On 30 April 2009, at the court hearing, the case NTA v. Ministry of Justice was adjourned till 6 May 2009. Later in May, the court ruled that the NTA could not blame the Ministry of Justice for the refusal of its registration as a professional association. In line with the newly proclaimed Charities and Societies Proclamation, the NTA had to lodge a request at the Charities and Societies Agency (CSA), a state agency yet to be established pursuant to the new legislation. EI points out that this decision implies that an agency which does not yet exist will be made accountable for the December 2008 decision of the Ministry of Justice not to register the NTA.
5. 599. In this respect, EI explains that on 6 January 2009, the Parliament adopted a draft law which subjects all civil society groups to government control and surveillance through a CSA. The draft law established an oversight agency with extensive discretionary powers to refuse legal recognition to non-governmental organizations (NGOs), to disband associations that were already legally recognized, and to interfere in the management of associations up to the point of altering their organizational missions. The draft law prohibits activities carried out by foreign NGOs relating to human rights, governance, protection of the rights of women, children and people with disabilities, conflict resolution, strengthening of judicial practices or law enforcement, and would strip national NGOs that work on human rights and good governance issues of access to foreign funding. The draft law defines as foreign any NGO that receives more than 10 per cent of its funding from foreign sources or has any members who are foreign nationals and bars foreign NGOs from working on human rights and governance issues. The draft law also imposes harsh criminal penalties, including fines and up to 15-years’ prison sentences, on anyone participating in unlawful civil society activities.
6. 600. EI further alleges that one official of the ETA, which was dissolved in June 2008, is still detained in the Kaliti prison centre contrary to a statement made by a Government representative to the ILO Commission on the Application of Standards in 2009. Meqcha Mengistu, a teacher at a secondary school in Dejen, chairperson of the former ETA East Gojam Zonal Executive and member of the former ETA Committee for the implementation of EI–ETA Education for All and HIV/AIDS programme (EFAIDS), Meqcha Mengistu was arrested on 30 May 2007. As of 31 August 2009, he was still in detention. Furthermore, knowing that the litigation process could keep her longer in detention, Ms Wubit Legamo, spouse of a former ETA activist, gave up her right to appeal against the verdict of the Federal High Court of 8 May 2009. She was subsequently released on 21 July 2009. Contrary to the official statement made by the Government representative, Ms Wubit Legamo was not treated humanely, according to a legal report analysing the ill-treatment she and former ETA members received during their interrogation and detention in 2007. The report indicated that the beating suffered by Ms Wubit Legamo in front of her child, resulted in the abortion of a five-month foetus. The report was sent to the Ethiopian Ambassador, as well as to the UN Special Rapporteur on Torture, in June 2008.
7. 601. In addition, contrary to a statement made by a Government representative, Ms Elfinesh Demissie, teacher at the Misraq Goh Primary School in Addis Ababa, did not miss 56 days of school. She did not work in her school for five days in total: three days when she could not reach school during the street protest in November 2005 (most headmasters and teachers were unable to get to their school due to the transport disruption) and two days in August 2006 when she asked for leave to attend the ETA General Assembly which was suspended by the security forces. These days of absence could not justify 36 days of suspension imposed on her. Neither did it justify the weekly harassment she endured.
8. 602. For several years, the Committee of Experts on the Application of Conventions and Recommendations has made comments demanding to bring national legislation into conformity with the requirements of Convention No. 87. Despite the commitment expressed by the Government, the revision of the Proclamation on the Public Service with a view to grant the right of freedom of association to public employees such as judges, prosecutors and other categories of workers was not undertaken. Although the Proclamation of 1993 was modified in 2003, teachers employed in the public services, who represent more than 200,000 civil servants, are still deprived of the right to establish trade unions and join the national trade union confederation (CETU). Furthermore, EI expresses hope that the Government will implement the ILO supervisory bodies’ recommendation to release the union colleague still detained because of his support to the independent teachers’ association and to reinstate and compensate teachers who have been dismissed and/or detained and tortured because of their membership in the independent ETA (Kassahun Kebede, Anteneh Getnet, Tilahun Ayalew, Woldie Dana and Berhanu Aba-Debissa).

C. The Government’s reply

1. 603. In its communication dated 14 October 2009, the Government welcomes the ILO direct contacts mission, which visited the country between 6 and 9 October 2009, and provides its comments on the recommendations thereof.
2. 604. On the question of registration, the Government indicates that the mission has correctly concluded that the dispute between the two groups claiming to represent the ETA had been resolved in the judicial system. However, this final decision was not fully accepted by all parties. Despite the final decision of the Supreme Court, there were further attempts to register an entity, the so-called NTA, giving an impression that the NTA had some credibility even before it was registered. EI allowed one of the organizers of the NTA to make a statement at the last International Labour Conference. The Government considers that allowing this organizer to represent an entity which had not even been registered in the country represents what is wrong with the system. The Government indicates that the complainants also submitted their case to the Office of the Ombudsperson and that this case was pending for a final decision. The Government stresses that the question of registration could only be dealt with through the processes established by national law.
3. 605. With regard to the second recommendation of the mission referring to the call for an independent investigation into the allegations of torture and maltreatment of teachers, the Government explains that all allegations presented with credible evidence were fully investigated by constitutional bodies including courts, the Human Rights Commission, the Office of the Ombudsperson, or by a mechanism approved by the House of Peoples’ Representatives.
4. 606. With regard to the third recommendation referring to the right of civil servants to form trade unions, the Government indicates that it had explained on several occasions, including at the last International Labour Conference, that this right was enshrined in article 42 of the Constitution, entitled “Rights of Labour” and states that factory and service workers, farmers, farm labourers, other rural workers and government employees whose work compatibility allows for it, and who are below a certain level of responsibility, have the right to form associations to improve their conditions of employment and economic well-being. The Government points out that it explained to all relevant bodies that full compliance must be achieved by gradually preparing the necessary conditions and the capacity of the country to shoulder the full extent of this right. It concludes by stating that civil servants have the right to form associations and enjoy full protection of due process under the Civil Service Law.
5. 607. The Government recalls that the report also covers allegations of imprisonment of teachers and states that the assumption that there were a large number of teachers in detention is without foundation. Those that were cited by name were detained on the basis of a court order. Those found guilty by the court for involvement in violent acts against the constitutional system were completing their sentences. The allegation that they were detained due to their union activities is unfounded.
6. 608. In its communication dated 7 March 2010, the Government transmits additional comments concerning the new allegations. The Government indicates that it has repeatedly explained that the right to form associations was a constitutionally protected freedom that citizens freely exercise. The 2006 Labour Proclamation upholds this fundamental constitutional right and guarantees to trade unions the right to engage in organized collective bargaining within the scope delineated by its provisions. The numerous freely functioning trade union and professional associations attest to the fact that the national legislation is in compliance with the ILO Convention.
7. 609. The Government indicates that the new Charities and Societies Proclamation, which was promulgated after extensive public discussions involving all stakeholders entered into force after the expiry of the period of time which was given to associations and various charities and societies to align themselves with the requirements of the new law. No trade union or related association raised complaints on being aggrieved or restrained by this new law. The Proclamation aims at enhancing the participation of civil society organizations in developmental efforts of the country. It clearly defines and regulates charities and societies and provides the necessary safeguards and due process in the framework of democratization efforts. The CSA is the newly established and legally competent state agency that registers associations based on transparent legal requirements. In its preamble, the new law provides that it is necessary to enact a law in order to ensure the realization of citizens’ rights to association enshrined in the Constitution and to aid and facilitate the role of the CSA in the overall development of workers.
8. 610. The Government explains that the ETA, which had 350,000 card-carrying and trade union dues-paying members, maintained its registration. The ETA was recognized as a legitimate association and was registered as such by the competent state agency. The Government reiterates that the same procedure and principle applies to the NTA, which can request registration from the newly formed CSA. Furthermore, if registration is refused by the CSA, the NTA can bring the issue before a court of law that could establish that the organization was unfairly denied registration by the CSA. At this stage, before the issues found legal closure, it is not appropriate for the Government to get involved in this regard. Once the NTA will be registered as a duly constituted association by the CSA, the Government reiterates its assurance that, as required by law, the NTA will enjoy all the entitlements of recognition and services that all legal associations are entitled to receive.
9. 611. The allegation that the Charities and Societies Proclamation limits the right to strike and collective bargaining is completely without legal or practical foundation. The conditions for the exercise of the right to strike and collective bargaining are governed by the Labour Proclamation. Likewise, as no undue limitations exist on the right to strike, unions can pursue their objective through this available option. The law also provides for peaceful settlement of labour disputes and encourages the parties to arrive at an amicable settlement and avoid confrontations that disturb industrial peace. Nevertheless, as elsewhere, if strike is unavoidable, the law provides for a list of essential public services to be maintained during a strike. The law also holds the guilty party accountable in the event that property damage occurs in the course of the exercise of such activities.
10. 612. The Government categorically rejects the allegations of interference in the affairs of independent associations. The Government states that without the free and unfettered operation of independent associations, the democratization effort in the country will not succeed. The proliferation of associations and trade unions and their membership is a clear demonstration of the Government’s commitment. The current labour law also permits multiple unions at the enterprise level and provides unions and associations with a legal arsenal to defend themselves against any form of undue intervention.
11. 613. With regard to the freedom of association rights of civil servants, the Government indicates that it was important to re-emphasize the fundamental fact that the Constitution explicitly provides that every person, including every civil servant, has the right to form associations for any cause or purpose. Civil servants with grievances in respect of their conditions of work are entitled to resort to legal mechanisms of redress under the legislation governing the civil service and other legal recourses, including the Office of the Ombudsperson. The Government reiterates its position that there was not, nor could there be, any difference on whether civil servants should be able to form associations. The only difference is the timing. In the Government’s assessment, the country is not ready to fully cater for such a framework. This is the only explanation why the Civil Service legislation did not yet provide a separate association in the civil service. As part of the democratization process in the country, the Government is fully engaged in implementing the civil service reform programme designed to provide efficient and speedy service to citizens. At the present juncture, the Government has not developed the capacity to engage in a fully fledged collective bargaining process with civil servants. This is a matter to be presented for consideration by the legislature once the reform programme is successfully implemented and the necessary national capacity is in place. The Government suggests that the ILO supervisory mechanisms take a global view on this matter as it was not productive to repeat endless allegations that did not respect the country’s legislative process and realities on the ground.
12. 614. With regard to the allegation concerning criminal cases involving 55 defendants, including those with connection to the ETA, in particular Meqcha Mengistu and Wibit Ligamo, the Government indicates that the criminal charges against them were brought in accordance with the provisions of the Criminal Code in relation to involvement with an illegal organization. The charges had nothing to do with the defendants’ ETA activities. On 8 May 2009, the second Criminal Bench of the Federal High Court found Meqcha Mengistu guilty and sentenced him to three years’ imprisonment. He was released after receiving a pardon. Ms Wubit Ligamo, who the Government denies was mistreated while in prison, was also released.

D. The Committee’s conclusions

1. 615. The Committee notes the new allegations sent by the ITUC and EI. It further notes the Government’s reply thereon, as well as its comments on the October 2009 direct contacts mission report.
2. 616. With regard to the registration of the NTA (recommendation (a)), the Committee notes that the Government refers to the newly adopted Charities and Societies Proclamation establishing the CSA, a registering authority. The Government indicates that the NTA can submit its request for registration to the CSA and, if registration is denied, the NTA has a right to submit a complaint to the court. The Government therefore considers that, at this point, it is not appropriate for it to get involved.
3. 617. The Committee notes with concern the complainants’ allegation in respect of this new legislation and, in particular, with regard to the allegedly discretionary power of the CSA to refuse registration, and its powers to interfere in internal administration and activities of trade unions. The Committee requests the Government to provide its observations thereon as well as all relevant information on the application of the Proclamation in practice.
4. 618. The Committee deeply deplores that almost two years after the NTA’s request for the registration, this organization is still not registered. It recalls that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers’ or employers’ organizations must take in order to be able to function efficiently, and represent their members adequately [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 295]. The Committee draws the Government’s attention to its responsibility in ensuring that this right is respected in law and in practice. The Committee therefore once again urges the Government to take all necessary measures to ensure that the appropriate authorities register the NTA without delay so that teachers may fully exercise their right to form organizations for the furthering and defence of teachers’ occupational interests without further delay. It urges the Government to keep it informed in this respect.
5. 619. With regard to the civil servants’ right to freedom of association (recommendation (b)), the Committee notes the Government’s statement that, while it considers that civil servants, like all other workers, should enjoy the right to form their associations at present, the country is not ready to provide and ensure freedom of association and collective bargaining rights to civil servants, as it has not yet developed the capacity to engage in a fully fledged collective bargaining process with civil servants. The Committee emphasizes that trade union rights, like other basic human rights, should be respected no matter what the level of development of the country concerned [see Digest, op. cit., para. 17]. The Committee therefore once again urges the Government to take the necessary steps to ensure that the freedom of association rights of civil servants, including teachers in the public sector, are fully guaranteed. It requests the Government to keep it informed of all progress made in this respect.
6. 620. With regard to the cases of arrests and detention of trade unionists (recommendations (c) and (d)), the Committee notes from the complainants’ communication that, as of 31 August 2009, one official of the ETA, which was dissolved in June 2008, Mr Meqcha Mengistu, was still in prison and that Ms Wubit Legamo was released on 21 July 2009, once she abandoned her appeal against the verdict of the Federal High Court of 8 May 2009. The Committee further notes the information provided by the Government, according to which the criminal charges against the accused persons were brought in accordance with the provisions of the Criminal Code in relation to their involvement with an illegal organization. The Government claims that the charges had nothing to do with the defendants’ ETA activities. On 8 May 2009, the second Criminal Bench of the Federal High Court found Mr Meqcha Mengistu guilty and sentenced him to three years’ imprisonment. He was released after receiving a pardon. The Government also confirms the release of Ms Wubit Ligamo. While welcoming the release of these two persons, the Committee regrets that the Government failed to provide the full texts of the relevant judgements in relation to these cases, as it had requested.
7. 621. In this respect, and with reference to its previous recommendation (e), the Committee recalls the allegation of the use of torture to extract confessions, which could have been used in court against the defendants. In particular, the Committee notes with concern the allegation of ill-treatment suffered by Ms Wubit Legamo. The Committee notes that the Government denies that prisoners were mistreated while in custody and indicates that all allegations corroborated by credible evidence were fully investigated by constitutional bodies including courts, the Human Rights Commission, the Office of the Ombudsperson, or a mechanism approved by the House of People’s Representatives. The Committee deeply regrets that, despite its repeated requests, the Government has failed to provide any report containing findings or conclusions on investigations carried out by these bodies. The Committee recalls that it has previously stressed the need to ensure that an independent inquiry into the allegations of torture and maltreatment of the detained persons is led by a person that has the confidence of all the parties concerned. The Committee therefore urges the Government, once again, to initiate without delay an independent inquiry into the allegations of torture and maltreatment of the detained persons, to be led by a person that has the confidence of all the parties concerned, and if it is found that they have been subjected to maltreatment, to punish those responsible and to ensure appropriate compensation for any damages suffered. The Committee requests the Government to keep it informed of the steps taken in this regard, the results of the inquiry, as well as that of any other investigations that have been carried out in relation to these allegations.
8. 622. With regard to the allegations of harassment, dismissal and suspension of trade union activists (recommendations (g), (h), (j) and (k)), the Committee notes the Government’s general statement that it categorically rejects the allegations of interference in the affairs of independent associations and that the current Labour Law also provides unions and associations with a legal arsenal to defend themselves against any form of undue intervention. The Committee stresses the importance for Governments to formulate detailed replies to the allegations brought by complainant organizations, so as to allow the Committee to undertake an objective examination [see Digest, op. cit., para. 24] and expects that the Government will be more cooperative in the future.
9. 623. With reference to its previous examination of this case and the additional clarifications provided by the complainants, the Committee once again urges the Government to initiate a full and independent investigation into the allegations of harassment in September–November 2007 of Ms Berhanework Zewdie, Ms Aregash Abu, Ms Elfinesh Demissie and Mr Wasihun Melese as well as over 50 of its prominent trade union activists, who have been taken to police stations near their respective schools and strongly advised by security agents to quit their union activities in order to determine responsibilities, punish the guilty parties and prevent the repetition of similar acts. It requests the Government to keep it informed in this respect.
10. 624. The Committee further requests the Government to take the necessary measures without delay in order to ensure the payment of lost wages to Ms Demissie (who was suspended for 36 days as a punishment for her trade union activities) as well as adequate indemnities or penalties constituting a sufficiently dissuasive sanction against any further act of anti-union discrimination. It requests the Government to keep it informed in this respect.
11. 625. The Committee recalls that it had previously noted the complainants’ allegation that Woldie Dana and Berhanu Aby-Debissa, although released, have been denied reinstatement in their teaching duties. The Committee notes that, according to the complainant’s latest communication, these persons were not able to return to their duties. The Committee requests the Government to provide information in this respect, as well as to reply in substance to the complainants’ previous allegations of dismissal of two trade union leaders, Nikodimos Aramdie and Wondewosen Beyene.
12. 626. It further requests the Government to conduct an independent investigation into the allegations of harassment, between February and August 2008, of seven trade unionists and to provide a detailed reply as to its outcome.
13. 627. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.